Citation Nr: 1325505 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-02 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for Hepatitis B and any residuals thereof. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from January 1970 to October 1973. The Veteran served in Vietnam and was awarded the Combat Action Ribbon and the Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas, which in pertinent part denied the claim of service connection for Antigen B. The Veteran appeared at a hearing before a local hearing officer at the RO in July 2010. A transcript of the hearing is of record. This matter was previously before the Board in May 2013, at which time the Board found that, notwithstanding that the Veteran claimed service connection for "Antigen B," the claim was broad enough to include service connection for Hepatitis B and any residuals thereof. The Board indicated that the medical records the Veteran submitted showed that he had tested positive for Hepatitis B surface antibody and the Hepatitis B core antibody. It was also noted that the Veteran had submitted treatise evidence regarding Hepatitis B in support of his claim. The Board observed that, at the hearing before the RO in July 2010, the Veteran contended that he incurred Hepatitis B while serving in Vietnam. The Board found that the Veteran's claim was one for service connection for Hepatitis B. The Board remanded the matter for further development, to include obtaining any additional treatment records and affording the Veteran a VA examination to determine the nature and etiology of any current Hepatitis B. In June 2013, the Veteran responded that he had no more treatment records to submit. In conjunction with the remand, the Veteran was scheduled for a VA examination in June 2013 and failed to report. He has provided no good cause for his failure to report. In this case, the directives of the remand were complied with as much as was possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). FINDING OF FACT The Veteran does not have a current disability of hepatitis B or disabling residuals thereof. CONCLUSION OF LAW The criteria for service connection for hepatitis B or residuals thereof have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In an August 2008 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The August 2008 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. As it relates to the duty to assist, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, and lay evidence. No additional pertinent evidence has been identified by the claimant. Moreover, as noted above, the Veteran has indicated that there are no other outstanding records. As it relates to the necessity for an examination, as noted above, the Veteran was scheduled for a VA examination in June 2013 to determine whether he had a current disability of hepatitis B, including the question of whether he had any residuals of hepatitis B, and, if so, to help determine the etiology of any claimed Hepatitis B and/or its residuals. The Veteran failed to appear for the requested examination, and has not provided good cause as to why he failed to report. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's failure to report is a factor in VA's decision to adjudicate the current claim without further development of the claim. See 38 C.F.R. § 3.655 (2012) (stating that when entitlement to a VA benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, an original claim will be rated based on the evidence of record). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements by him and through his representative and by testimony given at the July 2010 hearing. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further notice or action is necessary to assist the Veteran in substantiating this claim. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The claimed Hepatitis B is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012). After a review of all the evidence, the Board finds that the weight of the evidence is against a current disability of Hepatitis B and any residuals therefrom. A review of the Veteran's service treatment records reveals no findings or diagnoses of Hepatitis B. The Board notes that the Veteran was seen during service with a lesion on his penis in December 1970 and that he was treated for a sexually transmitted disease in July 1971 and September 1971. At the time of the October 1973 service separation examination, there were no findings of Hepatitis B or any residuals. In support of his claim, the Veteran submitted a June 1993 letter from the Carter Blood Center which indicated that, at the time of a May 1993 blood donation, the blood reacted in a screening test for antibody to Hepatitis B core antigen (anti-HBc). It was indicated that the screening test was known to have false positives and it was possible that the Veteran's blood gave false factors due to factors unrelated to exposure to the Hepatitis B virus. Also submitted was medical literature from the Carter Blood Center that listed the causes of Hepatitis B, which included exposure to blood from, or intimate contact with, an infected individual. It was also noted that some individuals who had evidence of current or previous HBV infection had reported military service or long term residence in geographic areas known to have high rates of Hepatitis B carriers, which included Africa, Japan, Korea, Vietnam, and other Asian countries. Also submitted in support of the claim were treatment records from the Veteran's private physician F. L., M.D., that included a June 1993 treatment note that the Veteran had given blood at the Carter Clinic and been told that he had tested positive for the Hep. B antigen. At the time of a subsequent follow-up visit, the Veteran was noted to have had labs drawn. Lab results submitted, dated in July 1993, revealed positive testing for Hep.B Surf. Ab and Hep.B Core, total. At the July 2010 hearing, the Veteran testified that he did not have a diagnosis of Hepatitis B and that he was not being treated for hepatitis B. In its May 2013 remand, the Board noted that there were medical questions presented by this case which were not currently addressed by the evidence of record. The Board found that a medical examination was necessary to assist in determining whether the Veteran had acute or chronic Hepatitis B infection or any residuals thereof, and whether any such residuals were related to active service. The Board observed that service treatment records showed that the Veteran had a risk factor for Hepatitis B, as he was treated for a sexually transmitted disease in service in July 1971. It further observed that private medical records dated in June 1993 showed that the Veteran had tested positive for Hepatitis B surface antibody and the Hepatitis B core antibody. The Board indicated that the record did not include either VA or private medical etiology opinion specifically addressing the question of the relationship of any Hepatitis B infection or residuals to active service. Thus, the Board found that an examination was needed to clarify the current diagnosis regarding Hepatitis B and to determine whether any current Hepatitis B, or residuals thereof, was related to the event (risk factor) in service. The Board requested that the Veteran be scheduled for a VA examination to assist in determining the nature and likely etiology of the claimed Hepatitis B and any residuals thereof. The examiner was requested to render a diagnosis as to whether the Veteran currently had acute or chronic Hepatitis B and to report all residuals of Hepatitis B. The examiner was further requested to indicate whether there was any current Hepatitis B and any residuals which were at least as likely as not (50 percent probability) due to an identified in-service risk factor/mode of transmission of sexual activity and treatment for a sexually transmitted disease in July 1971. In conjunction with the Board remand, the Veteran was scheduled for a VA examination in June 2013 and failed to report. As noted above, he has not provided any reason for his failure to report. Information obtained from this examination, especially on the unestablished element of current disability of Hepatitis B, including any residual disability, may have been beneficial to the Veteran's claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that VA's and the Court's interpretation of section § 1110 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and, therefore, the decision based on that interpretation must be affirmed). The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). While the Veteran has expressed his belief that he currently has Hepatitis B as result of his service in Vietnam, he has not been shown to have the requisite training or credentials needed to ascertain whether he currently has Hepatitis B and any residuals therefrom as this is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Hepatitis B is a complex blood (hepatic) disorder that involves few observable symptoms, and is diagnosed by specialized medical testing which the Veteran is not capable of performing. Such specialize medical testing includes blood testing such as the hepatitis B surface antigen (HBsAg) test or antibody to hepatitis B surface antigen (anti-HBs) test or antibody to hepatitis B core antigen (anti-HBc) test, or liver protein or liver function tests, or even liver tissue sampling. Hepatis B is not diagnosed based on symptoms alone, as many of the symptoms overlap with other disorders and are not unique to hepatitis B. Although the Veteran has submitted evidence demonstrating that he had tested positive for Hepatitis B surface antibody and the Hepatitis B core antibody, there has been no actual diagnosis of Hepatitis B or any resulting residuals in any treatment records associated with the claims folder, both VA and private. The Veteran has also testified as to not having been diagnosed with or treated for Hepatitis B. As distinguished from Jandreau, 492 F. 3d 1372 (stating that a lay person is competent to relate a contemporaneous diagnosis), the Veteran in this case does not even allege that a doctor diagnosed him with hepatitis B. As noted above, the Veteran was scheduled for a VA examination to determine if he had Hepatitis B and any resulting residuals and, if found, the etiology of the of the Hepatitis B and its relationship to service; however, the Veteran failed to appear for the requested examination and has provided no reason for his failure to appear. Given the foregoing, there is no current, competent evidence of Hepatitis B or residuals therefrom. The Veteran has also been notified of the necessity to provide a medical nexus between any claimed Hepatitis B and service and has not provided such a nexus. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for service connection for Hepatitis B and any residuals, must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for Hepatitis B, and any residuals thereof, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs